What does ‘packing the court’ mean and why are Democrats talking about it?

In the wake of President Trump’s decision to put forth a nominee to fill Ruth Bader Ginsburg’s seat on the U.S. Supreme Court, some Democrats in Congress, angered at the timing of the move, have called for a change in the nation’s highest court.

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Over fears that the institution will lean strongly to the right, potentially for 30 or 40 years, Democrats have threatened to change the ideological complexion of the court by expanding the number of justices who hear the nation’s top cases.

Called “court packing,” the issue has now made its way to the forefront of the presidential election with Democratic nominee Joe Biden and his running mate Sen. Kamala Harris, D-California, being asked about it in debates and on the campaign trail.

What is court packing and how could the Democrats do it? Where does Biden stand on the issue? Here’s what we know about it now.

What is court packing?

To pack the court means to add judges to a court.

The U.S. Supreme Court is made up of nine justices, with one of those justices being the Chief Justice.

Democrats have not said how many justices they would consider adding if they get the chance.

What does the Constitution say about the number of justices on the court?

The Constitution does not say how many justices are to sit on the Supreme Court. There were originally six justices on the Supreme Court. That number changed several times, but in 1869, Congress decided to set the number at nine justices.

How can that number be changed?

If the House, the Senate and the president agree, the number can be changed by passing a law. It would take a simple majority vote in both chambers for the bill to pass. The president would have to sign it into law.

Why do Democrats want to pack the court?

Democrats say they feel that the nomination of Amy Coney Barrett to fill Justice Ginsberg’s seat was made too close to a presidential election and that President Donald Trump did so to ensure a “conservative” court whether he wins re-election or not.

Senate Majority Leader Chuck Schumer, D-New York, told members of his caucus that he would retaliate if the GOP went forward with Barrett’s nomination.

“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table,” Schumer told his caucus on a call after Justice Ginsburg’s death.

According to The Washington Post, at least 11 candidates running for the Democratic nomination for president were open to the idea of expanding the number of justices on the court.

“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Elizabeth Warren, D-Massachusetts said. “It’s a conversation that’s worth having.”

Rep. Joe Kennedy tweeted in the days after Ginsburg’s death, “If [the Senate] holds a vote in 2020 (to replace Ginsberg), we pack the court in 2021. It’s that simple.”

What does Joe Biden say about it?

Former Vice-President Biden and running mate Kamala Harris have so far refused to say if they would support packing the court should Democrats win the presidential election, win the Senate and keep the House.

Both Biden and Harris were asked about it in debates, and both refused to answer the question.

On Thursday, when Biden was asked at a campaign stop in Phoenix if he would support the idea, he said, “You will know my opinion on court-packing when the election is over.”

What do Republicans say about it?

Vice President Mike Pence pressed Harris about her support for packing the court. She did not give an answer.

“The American people deserve a straight answer,” Pence said. “And if you haven’t figured it out yet, the straight answer is they are going to pack the Supreme Court if they somehow win this election.”

Rep. Jim Jordan, R-Ohio, submitted a resolution to Congress recently that would limit the court to nine justices.

“Any attempt to increase the number of Justices of the Supreme Court of the United States or ‘pack the court’ would undermine our democratic institutions and destroy the credibility of our nation’s highest court,” the resolution reads.

Has it been tried before?

The number of justices on the Supreme Court went up and down in the mid-1800s, at one time reaching 10 members. In 1869 the number was set at nine and has stayed at nine since then.

President Franklin Delano Roosevelt tried to add members to the court in the 1930s. Roosevelt proposed to reorganize the court by adding a new justice each time a justice reached age 70 and did not retire. Congress failed to go along with FDR.